City of Hobart Common Council v. Behavioral Institute of Indiana, LLC

BAKER, Judge,

concurring in result.

I fully concur in the result reached by the majority and applaud the scholarship of the majority's opinion. However, I write separately because I believe that we should re-examine Indiana Code section 36-7-4-918.6 in light of our supreme court's recent decision in Municipal City of South Bend v. Kimsey, 781 N.E.2d 683 (Ind.2003).

The majority notes that no party challenged the constitutionality of Indiana Code section 36-7-4-918.6 and cites Duncan v. Duncan, 764 N.E.2d 763, 768-69 (Ind.Ct.App.2002), for the proposition that "we seem to be precluded from considering the constitutionality of a civil statute sua sponte." Op. at 250 n. 9. Neither our constitution nor court rule prohibits us from examining the constitutionality of a civil statute. Thus, the inclination to forgo sua sponte review of a civil statute is a self-imposed judicial restraint and not a requirement. The reason for this restraint is that all statutes are clothed with a presumption of constitutionality unless the statute's "unambiguous language" requires us to conclude otherwise. Freidline v. Civil City of South Bend, 733 N.E.2d 490, 493 (Ind.Ct.App.2000). Here, however, Indiana Code section 86-7-4-918.6 is facially unconstitutional inasmuch as it uses population figures in such a way as to *257make it applicable to only two of our ninety-two counties. Kimsey, 781 N.E.2d at 692. Additionally, inasmuch as our supreme court issued its opinion in Kimsey on January 15, 2003, after the parties in this case had submitted their briefs, we cannot fault the Institute for failing to challenge the statute's constitutionality.

I would note that the Kimsey court deemed Indiana Code section 86-4-3-13(g) to be special legislation and violative of Article TV, Section 23 of our constitution.16 Kimsey, 781 N.E.2d at 694. The statute allowed St. Joseph County homeowners to defeat an annexation proposal if a simple majority of the affected landowners disapproved. Id. at 685. In the rest of the state, sixty-five percent of affected landowners were required to reject an annex- | ation plan. Id. St. Joseph County was not singled out by name, but the population figures used in the statute made the statute applicable only to St. Joseph County. Id.

The Kimsey court held that "if there are characteristics of the locality that distinguish it for purposes of the legislation, and the legislation identifies the locality, it is special legislation. The identification of the locality may be by name ("Tippecanoe County), by the characteristic that justifies special legislation (a unique Superfund liability), or otherwise (population parameters that include only the locality)." Id. at 692. The court found that Indiana Code section 36-4-3-13(g) was special legislation because "Section 36-4-3-13 now requires the opposition of sixty-five percent of landowners to defeat annexation in every other county in the State, but retains the majority requirement for St. Joseph County." Id. at 693.

The court went on to hold that legislation that was special could be considered constitutional if "accompanied by legislative findings as to the facts justifying the legislation's limited territorial application." Id. at 691. The Kimsey court cited State v. Hoovler, 668 N.E.2d 1229 (Ind.1996), as an example where "proponents of that special legislation had a factual basis upon which to rest their assertion that a general statute could not apply." Id. at 694. The legislation at issue in Hoovier, though only applicable to Tippecanoe County, was supported by a "well-documented" need to restore the only environmental Superfund site found in the state where local government was an identified Potentially Responsible Party. Id.

In Kimsey, the supporters of Indiana Code section 36-4-3-18(g) had argued that St. Joseph County had special needs: "the need to preserve rural land around urban areas" and the need "to prevent[ ] competing cities (South Bend and Mishawaka) within the same county from annexing each other's land." Id. at 694. However, our supreme court held that the need to preserve rural territory near a metropolitan area existed in Lake and Allen Counties as well. Id. The existence of multiple cities with annexation powers was also noted. Id. In sum, the Kimsey court held that "if the conditions the law addresses are found in at least a variety of places throughout the state, a general law can be made applicable and is required by Article IV." Id. at 692-93.

Here, an examination of the unambiguous language of Indiana Code section 36-7-4-918.6 reveals that we should not presume that the legislature acted within the constitutional constraints of Article IV, *258Section 23 because it uses the same type of population figures that triggered our supreme court's review in Kimsey. As the City of Hobart Common Council admits, the statute's population parameters make it applicable to only two of our ninety-two counties. Appellant's Br. p. 8. In ninety of our ninety-two counties, boards of zoning appeals have the final word on granting variances, but in Lake and St. Joseph Counties, legislative bodies are given the ultimate authority with respect to zoning decisions. Ind.Code § 86-7-4-918.6. When our supreme court has serutinized a statute that uses population figures to make it applicable to only one county, we have no less reason to review a statute that uses population figures in such a way that it affects only two counties. Thus, I fail to see how Indiana Code section 36-7-4-918.6, like the statute at issue in Kim-sey, is anything but special legislation.

Moreover, the statute itself provides no "legislative findings as to the facts justifying the legislation's limited territorial application." Kimsey, 781 N.E.2d at 691. The statute does not state why St. Joseph and Lake Counties are treated differently or what pressing problem drove the General Assembly to pass this statute.

In defense of the statute, amicus City of South Bend Common Council argues that in order to protect the public, "the Council must be permitted to review materials and hear evidence of witnesses which may be outside the official record of the Board of Zoning Appeals." Amicus Br. p. 4. The Council notes that the statute creates a public forum where property owners, neighborhood leaders, and other citizens may speak out for or against the zoning decision. Amicus Br. p. 6. Additionally, the Council's meetings are televised so a larger audience can be apprised of the zoning decisions. Amicus Br. p. 7.

Notwithstanding the Council's defense, it is apparent to me that its arguments could be applied to cities in our other ninety counties as well. No evidence of inherent characteristics of St. Joseph or Lake County was presented to show why their particular city councils-and not those in other counties-must obtain evidence outside the record of a board of zoning appeals. If more evidence and discussion truly lead to better decisions, as the Council seems to argue, the same could be said for all our counties. In short, "the conditions the law addresses are found in at least a variety of places throughout the state." Kimsey, 781 N.E.2d at 692-93. Thus, "a general law can be made applicable and is required by Article IV." Id.

Because Indiana Code section 36-7-4-918.6 is plainly special legislation, I would review its constitutionality and conclude that the statute is void as against Article IV, Section 28 of our constitution. Id. Thus, I would affirm and order that judgment be entered for the Institute.

Moreover, judicial economy compels this result. On remand, the trial court, now aware of our supreme court's decision in Kimsey, will be confronted with a motion to amend the Institute's petition for certio-rari and will undoubtedly come to the same conclusion as I have.

. Article IV, Section 23 of the Indiana Constitution reads as follows: "In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State."